Monday, March 20, 2006

Scalia loosens up

Justice Antonin Scalia, speaking to supporters of the New England School of Law at a banquet in Boston, allowed as how he was prepared to ''accept for the sake of argument that sexual orgies eliminate tension and ought to be encouraged." Loosen up with the Supremes, indeed. It's not every day that one gets to hear a justice of the Supreme Court share his view of orgies. A latecomer entering at that moment might have thought that Scalia was explaining what it really means to be one of the high court's ''swing voters."

In fact, he was making a serious point about democracy and the blight of ''judicial hegemony" undermining it. In case after case, the people's right to decide difficult questions of social policy democratically has been usurped by judges who fashion constitutional mandates out of their own moral preferences. Scalia cited a case dealing with an orgy not just to make sure that nobody would be snoring through his speech, but to illustrate what happens when ''abstract moralizing" turns into judicial compulsion.

Article 8 of the European Convention on Human Rights declares that ''everyone has the right to respect for his private and family life" -- a sentiment no reasonable person would disagree with. But six years ago, that provision was invoked to strike down a British law banning group sex. A European court held that the conviction of a man who had been involved in a five-person orgy violated his right to respect for his private life.

The problem with that ruling, Scalia said, isn't that sexual orgies are a social ill -- one might even argue that they ''ought to be encouraged." The problem is that unelected judges had no business deciding that question. In an open democratic society, it is the public that should be making such value judgments. That is what elections and legislatures are for. Rest here